Full Text
HIGH COURT OF DELHI
CS(OS) 1524/2013
MEHAR SINGH LOH AND ORS ..... Plaintiffs
Through: Mr. Kanwar Udai Bhan Singh Sehrawat, Advs.
Through: Mr. Digvijay Rai, Ms. Chetna Rai and
Mr. Aman Yadav, Advs. for D-1.
Mr. Sanjay Kumar Pathak and Mr. Sunil Kumar Jha, Adv. for Nodal
Officer/LAC.
Mr. R.K. Dhawan, Adv. for DDA.
19.07.2019 IA No.12226/2018 & 12227/2019 (both of plaintiffs for recall of the order dated 23rd May, 2014 and for condonation of 1536 days delay in applying therefor)
JUDGMENT
1. The counsel for the plaintiff and the counsel for the defendant Airport Authority of India (AAI) have been heard.
2. The suit seeks declaration of the plaintiff Ramjas (since substituted by his heirs) as the Bhumidar / owner of property admeasuring 152 sq. yds. in Khasra No.1221 in extended Lal Dora of Village Nangal Dewat, Delhi and a decree for mandatory injunction, directing the defendants to allot an alternate accommodation to the plaintiff in lieu of acquisition of his said land.
3. Though the matter has a long chequered history but it is deemed 2019:DHC:3497 expedient to commence from W.P.(C) No.340/2013 filed by the plaintiff seeking a direction to the defendants herein to allot to the plaintiff an alternative plot measuring 200 sq. mtrs. at the rehabilitation site in Village Rangpuri, New Delhi in lieu of land aforesaid admeasuring 152 sq. yds. owned in Village Nangal Dewat, and which land was acquired for expansion of the Airport. The said writ petition was disposed of by order dated 15th July, 2013. The said order records, (i) that the Nodal Officer appointed to adjudicate the claims for alternate plot had vide order dated 17th November, 2006 found, (a) the plaintiff to be not eligible for allotment of plot as the land was not recorded in the name of the plaintiff in the revenue records and the plaintiff was unable to produce any documents in support of his plea, of exchange of land; therefore, the claim was based on possession only; (b) that the allotment of alternative plot was not being considered under the Land Acquisition Act, 1894 nor payment of compensation was involved; Section 30 of the Land Acquisition Act also was not applicable; and, (c) however, the issues which arose required settlement by a Civil Court and the plaintiff should approach the Civil Court for adjudication of his claim on the disputed land and the claim of the plaintiff could not be considered by the Nodal Officer; (ii) that after the aforesaid order of the Nodal Officer, the plaintiff filed a civil suit, plaint wherein was returned vide order dated 15th December, 2012 on the ground that the appropriate forum to entertain the suit was the High Court of Delhi and not the Court of the Additional District Judge; (iii) that the subject writ petition was filed challenging the order dated 17th November, 2006 of the Nodal Officer; (iv) that the plaintiff had accepted the order dated 17th November, 2006 of the Nodal Officer and filed the civil suit in acceptance thereof and the challenge in W.P.(C) No.340/2013 to the order dated 17th November, 2006 of the Nodal Officer was an afterthought and the writ petition was barred by delay, laches and acquiescence; and, (v) however, the Additional District Judge (ADJ) had erred in returning the plaint instead of transferring the same to the Original Side of this Court. Accordingly, the writ petition was disposed of by setting aside the order dated 15th December, 2012 of the ADJ returning the plaint to the plaintiff and the suit filed by the plaintiff was ordered to be transferred to this Court.
4. In pursuance to the aforesaid order, CS(OS) No.1524/2013 came to be registered and was being pursued by the plaintiff.
5. However, the plaintiff filed IA No.10224/2014 under Section 151 of the Code of Civil Procedure, 1908 (CPC), for withdrawal of the suit, stating that the subject suit was identical to CS(OS) No.1525/2013 titled Sunil Kumar & Ors. Vs. Airport Authority of India & Ors. which had been disposed of as withdrawn vide order dated 2nd May, 2014 and that the plaintiff was similarly aggrieved; the plaintiff thus sought leave to withdraw the suit with liberty to approach the concerned authority to address his grievance.
6. The aforesaid application of the plaintiff came up before this Court on 23rd May, 2014, when the same was allowed and the suit was dismissed as withdrawn with liberty to approach the concerned authority.
7. IA No.12226/2018 has been filed for recall of the order dated 23rd May, 2014 withdrawing the suit and for restoration of the suit, pleading (i) that after withdrawal of the suit, the plaintiff filed representation dated 2nd July, 2015 to the Nodal Officer, requesting him for allotment of rehabilitation plot; (ii) that the defendant AAI objected; (iii) that persons similarly situated as the plaintiff had filed W.P.(C) No.199/2012 titled Jai Singh & Ors. Vs. Airport Authority of India wherein an application for conferment of the powers on the Additional District Magistrate (ADM), as exercised by the earlier Nodal Officer, was filed and which application was not opposed by AAI and was allowed and the ADM vested with the powers of Nodal Officer; (iv) however, the Nodal Officer, on the representation of the plaintiff, passed an order dated 31st October, 2017 and the plaintiff sought liberty from the Nodal Officer to seek appropriate clarification from this Court about his empowerment; (v) that the order dated 31st October, 2017 was challenged in this disposed of suit by filing IA No.15602/2017 seeking clarification/direction that ADM, New Delhi was vested with the power of the Nodal Officer to adjudicate the representation of the plaintiff;
(vi) however, IA No.15602/2017 was dismissed vide order dated 20th August, 2018, but on request of the plaintiff, liberty was granted to file an application for recall of the order dated 23rd May, 2014; and, (vii) thereafter, these applications have been filed.
8. The counsel for the plaintiff has in Court drawn attention to page 190 of Part-II(A) file, being the order dated 6th November, 2012 in W.P.(C) No.199/2012 titled Jai Singh & Ors. Vs. Airport Authority of India whereby an application to confer the powers as exercised by the earlier Nodal Officers was vested in ADM, New Delhi and has contended that he had withdrawn the suit on 23rd May, 2014 to avail the same relief which had been granted to the petitioners in W.P.(C) No.199/2012.
9. Though the counsel for the plaintiff has also referred to the order dated 20th February, 2014 in W.P.(C) No.9945/2009 titled Airports Authority of India Vs. Nodal Officer, but the same is of no relevance for the present purpose.
10. The counsel for the defendant AAI has referred to the judgment dated 26th August, 2013 in LPA No.613/2013 titled Mehar Singh Loh Vs. Airport Authority of India preferred by the plaintiffs, being the heirs of the deceased plaintiff Ramjas, against the order dated 15th July, 2013 in W.P.(C) No.340/2013 supra, of dismissal of the appeal and holding the decision of the learned Single Judge, of the remedy of the plaintiff, if any being before the Original Side of this Court only and dismissing the petition filed by the plaintiff, to be correct.
11. The counsel for the plaintiff contends that the plaintiff have a very good case on merits and should not be deprived of adjudication thereof.
12. I have considered the rival contentions.
13. In my opinion, no case for recall of the order dated 23rd May, 2014 and of restoration of the suit is made out, for the reasons hereinafter recorded: (A) The plaintiff, vide order dated 17th November, 2006 of the Nodal Officer, were informed that their claim required adjudication by the Civil Court. (B) The plaintiff, abiding by the aforesaid order, instituted the suit before the Court of the ADJ; however the ADJ returned the plaint, though from a reading of the order dated 15th July, 2013 supra, it transpires that the ADJ, as per orders made in CM(M) No.249/2007 titled Airport Authority of India Vs. Karan Singh was required to transfer the suit to the Original Side of this Court.
(C) The plaintiff, instead of seeking their remedy against the order dated 15th December, 2012 of the ADJ, of return of the plaint, filed W.P.(C) No.340/2013 impugning the order dated 17th November, 2006 of the Nodal Officer. The said writ petition was dismissed vide order dated 15th July, 2013, reviving the suit filed by the plaintiffs and transferring it to the Original Side of this Court.
(D) The aforesaid order dated 15th July, 2013 received the imprimatur of the Division Bench of this Court vide judgment dated 26th August, 2013 and which judgment attained finality. (E) Thus, as far as the claim of the plaintiff was concerned, it had been consistently held by the Nodal Officer, by the learned ADJ, by the learned Single Judge of this Court in judgment dated 15th July, 2013 and by the Division Bench of this Court in judgment dated 26th August, 2013, that the remedy of the plaintiff was before the Original Side of this Court and not before the Nodal Officer. (F) However, notwithstanding the same, the plaintiff yet again filed IA No.10224/2014 for withdrawal of the suit, to approach the Nodal Officer and which application came to be allowed on 23rd May, 2014 and the suit dismissed as withdrawn with liberty sought. (G) The plaintiffs, even after the Nodal Officer vide order dated 17th November, 2006 had refused to entertain the representation of the plaintiff, did not apply for restoration of the suit but filed IA No.15602/2017 before this Court for vesting powers in the Nodal Officer and which application was dismissed vide order dated 20th August, 2018. (H) It is only thereafter that IA No.12226/2018 has been filed on 5th September, 2018, for restoration of the suit along with IA No.12227/2018 for condonation of delay of 1536 days delay in filing thereof.
(I) A plaintiff, who inspite of categorical concurrent findings of the Nodal Officer, ADJ, Single Judge of this Court as well as of the Division Bench of this Court, of the dispute raised being capable of decided only on the Original Side of this Court, and notwithstanding having been granted indulgence of restoration of the suit which had been returned, could by no stretch of logic, on the basis of order in Jai Singh supra, could have held an opinion in law that his remedy was not before the Civil Court but before the Nodal Officer. The earlier order of the Nodal Officer holding that he did not have jurisdiction, had attained finality and there was no possibility in law of the Nodal Officer, inspite of earlier order having been upheld till the Division Bench, exercising jurisdiction. (J) Once a legal position had attained finality qua the dispute raised by the plaintiff, there is no reason for the plaintiff to, on the basis of Jai Singh supra, again approach the Nodal Officer. In fact, it is not known, what was the nature of the dispute in Jai Singh supra which was agreed to by the defendant AAI to be referred to the Nodal Officer. (K) A party to a lis does not have an indefinite latitude to, as and when so desires, withdraw a lis and seek restoration thereof. If the same were permitted, it would make a mockery of the law of limitation, prescription and procedure.
(L) Once the suit is withdrawn and is permitted to be withdrawn with liberty to take appropriate steps, the suit cannot be revived and the remedy with which the plaintiff are left with, is only of challenging the orders in the alternate steps taken, till the last Court and after failing in the alternate steps, no revival of the suit cannot be sought, howsoever good on merits the claim may be. While it is true that in the absence of a specific provision in CPC for recalling an order permitting withdrawal of a suit, the provision of Section 151 of CPC can be resorted to, but it must be kept in mind that inherent powers of the Court under Section 151 are meant to prevent abuse of the process of the Court. It has been held by the Supreme Court in Ram Prakash Agarwal Vs. Gopi Krishan (2013) 11 SCC 296 that the inherent powers of the Court cannot be used to re-open settled matters.
(M) In the name of justice to one party, injustice to other parties cannot be done.
14. The counsel for the plaintiff, who had been interrupting during the dictation and was asked to wait till this stage, states (I) that the plaintiff throughout have been acting bona fide and as per the legal advise; and, (II) that in the order dated 17th November, 2006 of the Nodal Officer also, it has been noted that the land of the entitlement of the plaintiff had not been allotted to any other person.
15. The aforesaid additional arguments do not vary the opinion formed above. Howsoever bona fide the actions of the plaintiff of withdrawal may have been, the same cannot change the procedure. A litigant has to be held responsible for his/her choices and decisions, howsoever bona fide they may be; in the name of bona fide, the litigant cannot be permitted to walk in and walk out of the Court as he/she chooses. Moreover, a litigant assisted by an Advocate, has to face the consequences of legal advise given by his Advocate and in the name of the Advocate having given wrong advise, cannot violate the procedure prescribed by law. Else, there will be no finality to any adjudication, with the litigants, by blaming the Advocate, not allowing any matter to be settled and re-agitating the same repeatedly by merely changing the Advocate. Moreover, for acquisition of the land, the rightful claimants were awarded compensation and the scheme of allotment of alternate plot was devised by this Court in the petitions challenging the acquisition, without any statutory right in the persons whose land was acquired, for any alternate land. The reliance on the order dated 17th November, 2006 of the Nodal Officer is also misconceived in view of the subsequent judgment dated 15th July, 2013 of the learned Single Judge of this Court and judgment dated 26th August, 2013 of the Division Bench of this Court. It is sad that the counsel for the plaintiff today in his arguments also is giving more credence on the observations of the Nodal Officer than on the findings of the Single Judge/Division Bench of this Court.
16. The counsel for the defendant AAI informs that in Jai Singh supra, no order of the Nodal Officer was under challenge and the defendant AAI had agreed to conferment of power of Nodal Officer in the ADM because only a change of name on demise, was in issue. He states that no parity can be drawn with the present case.
17. No merit is found in the applications, which are dismissed. CS(OS) 1524/2013 & IAs No.9581/2019 (u/O XXII R-3 CPC), 9582/2019 (for condonation of 52 days delay) & 9583/2019 (for exemption)
18. Resultantly, the suit remains dismissed as withdrawn in terms of order dated 23rd May, 2014 and the need to adjudicate other pending applications does not arise.
RAJIV SAHAI ENDLAW, J. JULY 19, 2019 ‘bs’